Effective Health & Safety Enforcement – the Traffic Commisioners Way

On the 9th January 2008 Barry Copeland’s life changed forever, his wife Ann left the family home to take their two children, 10 year old Niamh and 7 year old Ciara to school in Montrose, a distance of just under 10 miles. Ann Copeland and her two young daughters never made it as far as school that day, halfway through their short journey their car skidded on a contaminated road surface, colliding with an oncoming vehicle, all three were killed instantly.

In the Fatal Accident Inquiry determination the Sheriff stated that in balance of probabilities the source of the contamination was likely to have come from hydraulic fluid from a crane belonging to William Whyte Crane Hire which had traveled south on the same road earlier that morning. The reason the Sheriff could not be certain of the source was that Tayside Police, for some reason, when taking samples from the contaminated road surface failed to take a similar sample from the crane to prove beyond reasonable doubt that the crane was the source of the contaminate.

Scottish Hazards also believes Tayside Police should have investigated this under the protocol for work related deaths introduced two years before this tragedy, of which the HSE and the Association of Chief Police Officers in Scotland were both signatories. Had this been done then the lax approach adopted by Whyte Crane Hire to health and safety management and maintenance of their crane fleet would have come to light far earlier and perhaps may have resulted in charges under health and safety legislation, Whyte Crane Hire were not charged with any road traffic offences and were not held to account for their failures that led to the deaths of a mother and her two young children.

You would think being let off the hook for their involvement in this tragedy the company would its efforts on getting health and safety right first time as they claimed to have done in 2017 when they appeared in Court following an incident in August 2015 when a Whyte’s worker suffered serious injuries following a fall while unloading wind turbines at Inverness Harbour . On this occasion the company were fined £60,000 for failing to ensure safe systems of work. At the time Alan Duncan, Head of the COPFS Health and Safety Division said, “ this incident could well have proved fatal and it has significantly changed Mr Reid’s life”.

Last month, in a clear health and safety message to Whyte’s management Scotland’s retiring Traffic Commissioner, Joan Aitken refused an application to double their fleet citing safety concerns as the reason for her decision to effectively bar the proposed expansion of the business and two recent informing her decision; the first in September 2017 involved a wheel becoming detached from a Whyte’s vehicle, narrowly missing a car being driven by a woman in Edinburgh, an incident the Commissioner described as a near miss but one that could have had far greater consequences. A further concern she had related to the fact that Lawrence Whyte is currently banned from driving for a driving offence.

In her written decision falling short of revoking existing licenses, a move that she considered disproportionate that she felt some action was necessary to reflect her concerns about the Managing Director’s attitude towards road and public safety, matters within her regulatory powers, making her question if she could trust him to hold an operator’s license, adding that the operator did not deserve the extension for which they were applying.

The Fatal Accident Inquiry into the deaths of Ann, Niamh and Ciara Copeland highlighted the fact that mobile cranes of the type operated by Whyte’s do not require a certificate of roadworthiness, a fact that did not escape the Sheriff at the time, he recommended that the UK Government take steps to rectify the anomaly that allows vehicles of substantial size to be driven on UK roads without any proof they are mechanically sound to do so. He was also critical of the safety management systems and vehicle inspection arrangements in place at Whyte’s Crane Hire in the months leading up to the tragedy, failures that the Sheriff said had they not been present “ would have resulted in that fault being observed and corrected by re-routing of the hose and as a result, it is unlikely that the hose would have failed and caused leakage of hydraulic fluid at the locus, and that the deaths may have thereby have been avoided”.

Over ten years after the tragedy that claimed their lives of three members of the Copeland family the United Kingdom Government has ignored the Sheriff’s recommendations to have a road worthiness test for mobile cranes and it would appear, from the Traffic Commissioner’s scathing report following the 2017 near miss, that Whyte’s commitment to health and safety and the safety of the public is still a matter of concern to at least one of our regulator’s.